Dismissing an employee by citing gross misconduct should be the last resort for an employer.
A dismissal is said to occur when an employer terminates the employee’s contract. Just as formal disciplinary actions become necessary only after the informal methods fail to resolve the problem, an employee should be dismissed only after none of the other redressal mechanisms work.
The ACAS Code of Practice on discipline and grievance, lays down the groundwork i.e. principles for handling disciplinary situations and grievances in workplaces, up to and including employee dismissals, in the ACAS Code.
Whilst the ACAS Code is not, in itself, legally enforceable, an employment tribunal will take its provisions into account while considering relevant cases. Let us take a closer look at the various aspects of conduct dismissals in the United Kingdom.
Reasons for Conduct Dismissals
Employers can dismiss an employee if:
- the employee is incapable of performing his or her job to the required standard
- the employee is capable, yet unwilling to do his or her job properly
- the employee has committed some form of gross misconduct
In case an employer wants to dismiss someone, they need to carry out necessary investigations to establish the facts of the case, without unreasonable delay.
Having said this, it is always best to try an informal approach first to resolve the issue – often a quiet word helps sort out problems between individuals. Additionally, if a capability issue is linked to an employee’s health, the employer must try to help them do their job better before ordering their dismissal.
According to employment law and the ACAS Code of Practices, different disciplinary procedures are relevant for different circumstances. Employees are entitled to be accompanied to appeal to a manager and all disciplinary meetings.
Let us take a look at the various categories of misconduct in the workplace and their relevant disciplinary procedures.
If the employee’s underperformance or misconduct was a one-off incident and the employee has an overall excellent disciplinary record, the employer may arrange for an informal discussion to resolve the issue. This helps expedite the conflict resolution and is also less time-consuming.
Misconduct may include things like unauthorised absence from work or persistent lateness. To make sure that the dismissal is fair when misconduct is not ‘gross’ or ‘serious’, employers need to arrange a meeting with the employee in question and inform them of the reason.
At the meeting, the employee is given a chance to explain and if their explanations are not satisfactory, they may be issued a first written warning. In this warning letter, the employer asks them to improve within a stipulated period. If there is no significant change in behaviour in the employee’s conduct, the employer may give them a final written warning.
However, before giving out the final warning, the employers need to arrange a second meeting with the employee, if his or her performance or conduct has not improved much by the deadline. In this meeting also, the employees are again given a chance to explain their perspective.
If their answers are still not satisfactory, the employer may proceed to issue a final written warning. The employer may also revise the action plan with timelines for improvement, warning the employee that they’ll consider dismissal if there is no improvement in the behaviour.
Employers need to hold a third meeting if an employee’s performance or workplace conduct is still not as expected, by these new deadlines. After the meeting concludes, the employer decides whether to give the employee any further chance to improve or dismiss them with immediate effect. In either case, the employer must convey their final decision to the employee.
The employers may issue a single ‘first and final’ warning, in writing, if the employee’s underperformance or misconduct is serious enough. Herein, the employer arranges a meeting with the employee and explains that not improving would lead to termination of employment.
As per the ACAS Code of Practices, ‘Serious Misconduct’ includes behaviour that is likely to or has caused significant harm to the organisation itself.
Accordingly, gross misconduct may include:
- acts of theft;
- gross negligence;
- physical violence or;
- serious insubordination.
If the employee is found guilty of gross misconduct, the employer may dismiss them immediately after going through the procedure for fair dismissal as laid down in the ACAS Code of Conduct.
The employer must thoroughly investigate the incident and allow the employee to explain their perspective before deciding to dismiss them.
In case, however, the employer proceeds with the dismissal without conducting a fair investigation, the employee may cite unfair dismissal and file for an employment tribunal claim.
No matter what type of misconduct, employers must seek to carry out necessary investigations to establish the facts, without unreasonable delay.
As per employment law in the UK, every employee has the right not to be unfairly dismissed. Therefore, the onus lies with the employers to make sure that employees and managers understand the procedures and rules for disciplinary issues.
Having said this, employers need to conduct a thorough and fair investigation in cases of gross misconduct before issuing a dismissal. On the other hand, if the employee feels that they have suffered unfair dismissal, they may consult an experienced employment law solicitor to decide on the further course of action.
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.